Case of the week: London Borough of Brent v Fuller

The claimant, Mrs Fuller, was an administrator at a school for children with social and emotional difficulties. The nature of Mrs Fuller’s role meant that she did not have contact with the children. In May 2007, Mrs Fuller intervened when the teaching staff were trying to control a difficult child. The head teacher told Mrs Fuller on the spot that she was not to interfere in either discipline or the application of behavioural restraint. No further formal discussion or disciplinary action over the incident took place.

In October 2007, a similar but more serious discipline/behavioural restraint incident took place and Mrs Fuller again intervened. The school decided that Mrs Fuller’s intervention was serious misconduct and it instigated disciplinary action. Mrs Fuller was invited to a disciplinary hearing but she did not attend.

The school dismissed Mrs Fuller in her absence for gross misconduct. Mrs Fuller was found guilty of “repeated and inappropriate intervention into behaviour management issues” and “failure to follow reasonable management instructions”. In reaching the decision to dismiss, the school took into account the fact that, following the May incident, Mrs Fuller was aware that she should not have interfered when the October incident occurred.

Mrs Fuller appealed against the school’s decision to dismiss her, but she did not attend the appeal hearing. The school did not uphold Mrs Fuller’s appeal and so she issued proceedings for unfair dismissal, primarily on the basis that the decision to dismiss did not fall within the band of reasonable responses.

DECISION

The employment tribunal held that the May incident, which was categorised as a verbal warning, had been “built up to more than it was” and that, while the school had the right to be concerned about Mrs Fuller’s intervention, her behaviour did not, of itself, merit dismissal. The tribunal came to the conclusion that no reasonable employer would have dismissed Mrs Fuller for a “one-off incident”. The dismissal was therefore held to be unfair.

The school appealed to the Employment Appeal Tribunal (EAT) on two grounds: that the employment tribunal wrongly substituted its own view for that of the school; and that the employment tribunal wrongly regarded the May incident as involving a warning that had not been conducted through the appropriate procedure, and that the employment tribunal was wrong to find that the respondent had itself rolled up the two incidents.

In relation to the first ground, the EAT found that the employment tribunal had indeed substituted its own view about what it would have done in relation to Mrs Fuller’s intervention. The EAT pointed out that this was a unique school with unique problems and in those circumstances the head teacher and governors of the school were entitled to take the view that Mrs Fuller’s intervention was inappropriate.

In relation to the second ground, the EAT first clarified that Mrs Fuller had not received a formal warning for the May incident. The EAT held that the May incident was relevant to the October incident but that the claimant was dismissed solely for the October incident. The EAT referred to the Court of Appeal’s decision in Airbus v Webb [2008] IRLR 309, which confirmed that all matters relating to the background of a dismissal, including an expired disciplinary warning, are relevant and should be taken into account when considering whether or not to dismiss.

The EAT overturned the employment tribunal’s decision that the dismissal was unfair.

IMPLICATIONS

This decision will come as a welcome relief to employers in situations where they have not followed a disciplinary process in relation to earlier acts of misconduct and are now considering dismissal.

However, the case has unique elements and as such it should not be used as an excuse for not following a disciplinary process and issuing a warning in relation to the earlier act.

A warning has the effect of informing the employee, in no uncertain terms, that if the behaviour is repeated, it could lead to dismissal. The issuing of warnings is also of importance as the Acas code recommends that employees should usually be given at least one chance to improve before a final written warning is given and then dismissal.

Airbus UK Ltd v Webb [2008] IRLR 309 CA The Court of Appeal held that there is no rule of law that spent warnings must be ignored for all purposes. On the facts, where a spent warning was not part of the reason for the dismissal, but the basis for the employer’s refusal to exercise leniency in respect of later gross misconduct, the dismissal was not necessarily unfair.